Said v. Assaad , 735 N.Y.S.2d 265 ( 2001 )

Hayes, J.

(dissenting). In appeal No. 2, I respectfully dissent in part and vote to reverse the order and hold Western Products, Inc., a Division of Douglas Dynamics, Inc., and Douglas Dynamics, Inc. (Western Products) jointly and severally liable for all damages awarded by the jury. In my view, Supreme Court erred in determining that Western Products is not jointly and severally liable for all damages awarded by the jury. Contrary to the majority’s position, it is not necessary in this case for a jury to find whether there was a single indivisible injury or which defendant caused which injuries. Joint and several liability is appropriate where, as here, “two or more [tortfeasors] act concurrently or in concert to produce a single injury” (Ravo v Rogatnick, 70 NY2d 305, 309). It is only when tortfeasors act neither concurrently nor in concert that a court should consi4er whether the tortfeasors should nevertheless be held jointly and severally liable because the nature of the injuries “are incapable of any reasonable or practicable division” among the multiple tortfeasors (Ravo v Rogatnick, supra, at 310).

Here, Western Products was properly found liable once the jury found that a defect in the design of the snowplow attached to the pickup truck aggravated or enhanced the injuries of plaintiffs son (see generally, Bolm v Triumph Corp., 33 NY2d 151, 156-159). The jury then found Gabriel A. Assaad 95% responsible and Western Products 5% responsible for the injuries of plaintiffs son. In my view, under the circumstances of this case, Western Products is jointly and severally liable for all of the injuries sustained by plaintiffs son. This is not a second collision case with successive tortfeasors. Rather, plaintiffs son was injured as the result of one collision between the vehicle driven by Gabriel Assaad and owned by Momdouh A. Assaad (Assaad defendants) and the pickup truck that was equipped with the snowplow attachment.

Furthermore, contrary to the majority’s position, the proof did not establish that there was any reasonable way to allocate the causation of the injuries of plaintiffs son between Western Products or the Assaad defendants. Plaintiffs son sustained multiple injuries, including a skull fracture, a fractured leg, a fractured pelvis, a fractured elbow, a perforated hearing drum with resulting loss of hearing, and depression. The proof did not establish that those injuries could be divided. I would therefore reverse the order in appeal No. 2 and hold Western Products jointly and severally hable, affirm the order and judgment in appeal No. 3 against the Assaad defendants and vacate the order and judgment in appeal No. 4 against Western Products in accordance with my decision in appeal No. 2. (Appeals from Order and Judgment of Supreme Court, Onondaga County, Major, J. — Damages.) Present — Pigott, Jr., P. J., Hayes, Wisner, Kehoe and Burns, JJ.